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Madhya Pradesh High Court · body

2007 DIGILAW 895 (MP)

Ganpat v. State of M. P.

2007-08-14

A.K.SHRIVASTAVA, SUSHMA SHRIVASTAVA

body2007
JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.7.1998 passed by learned III Additional Sessions Judge, Chhatarpur in Sessions Trial No. 147/97, convicting the appellant under sections 302 and 201 IPC as well as under section 25 (1) (a) of the Arms Act and sentencing him to suffer life imprisonment, rigorous imprisonment of two years and rigorous imprisonment of one year, respectively, this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 has been preferrd by him. 2. In brief the case of prosecution is that on 13.3.1997 accused Ganpat lodged a report at 3:00 p.m. in Police Chowki Garroli that he along with his Bhabhi (sister-in-law) Sahodra were cutting crop of gram and his brother Hajj u (hereinafter referred to as 'the deceased') climbed on a Kawa tree and was chopping the wood of that tree, at that juncture he heard the shriek of the deceased as a result of which he and Sahodra rushed towards the tree and found that deceased was lying beneath the tree and was groaning. Deceased received injuries on his nose, face and neck on account of fall from the tree. Thereafter, after sometime, his brother breathed his last. He has also stated that Jagdish, Jhallu and Buddhsingh have also seen the incident. 3. On the basis of said report a Marg case was registered at Police Chowki and for registering the case that report was sent to Nowgaon Police Station. On 14.3.1997 i.e. the next day of the incident, vide Ex. P-18 Panchnama of the dead body was prepared and vide Ex. P-20 spot map was also prepared on the same day. An axe was also seized which was lying nearby the Kawa tree. 4. On 20.3.1997 i.e. after 7 days of the date of incident Sahodra lodged a written report Ex. P-15 in Police Chowki Garroli and on the basis of said written report FIR was registered against the appellant. 5. The investigating agency after completing the investigation submitted a charge-sheet in the competent Court, which on its turn committed the case to the Court of Session from where it was received by the trial Court for its trial. 6. P-15 in Police Chowki Garroli and on the basis of said written report FIR was registered against the appellant. 5. The investigating agency after completing the investigation submitted a charge-sheet in the competent Court, which on its turn committed the case to the Court of Session from where it was received by the trial Court for its trial. 6. Learned trial Judge on the basis of evidence placed on record found the charges to be proved and eventually convicted appellant and passed the sentences which we have mentioned here-in-above. 7. In this manner the appellant has preferred this appeal assailing the judgment of conviction and order of sentence passed by trial Court. 8. The contention of Shri Siddharth Datt, learned counsel appearing for the appellant is that date of incident is 13.3.1997 and appellant himself lodged a Marg report in Police Chowki Garroli which was later on sent to Police Station Nowgaon where Marg case was registered. On the next day of incident i.e. 14.3.1997 police party arrived in the village and seized the dead body of the deceased and also prepared spot map vide Ex. P-19 and Ex. P-20, respectively. Thereafter, on 20.3.1997 i.e. 7 days after the date of incident, written report Ex. P-15 was submitted by Sahodra implicating the present appellant as an accused that indeed he has caused injuries to the deceased by the stick of Sizua tree. But, she did not lodge the report implicating the appellant on account of fear as appellant threatened her that if she would lodge report, she may face dire consequences. She has also stated in the written report that appellant also brandished a Katta (country made pistol) to her as a result of which on account of fear and terror created by appellant she did not lodge any report earlier. In the report it is also mentioned that now she has come to her parents' house and narrated the real incident to her brothers Ratiram and Gayadeen and also to her mother and now she is submitting a written report. The scribe of written report Ex. P-15 is PW 13 Balwant Singh. 9. In the present case the prosecution has examined two persons as eye-witnesses, namely, Sahodra (PW 9) and Sarju (PW 10). Indeed, Sarju (PW 10) is a child witness having age of 7-8 years and is the son of deceased and Sahodra (PW 9). The scribe of written report Ex. P-15 is PW 13 Balwant Singh. 9. In the present case the prosecution has examined two persons as eye-witnesses, namely, Sahodra (PW 9) and Sarju (PW 10). Indeed, Sarju (PW 10) is a child witness having age of 7-8 years and is the son of deceased and Sahodra (PW 9). He has categorically stated that he has been tutored I by her mother and, therefore, according to us, it will be highly unsafe to place reliance on the testimony of this witness. 10. Now the question remains whether the statement of Sahodra (PW 9) is reliable in order to uphold the conviction of the appellant. According to her, the incident took place at 1:00 p.m. and appellant caused injury to her husband by the stick of Sizua tree on the neck region and continued to beat him and did not stop the beating though the deceased fell down. This incident took place in the field and thereafter the appellant dragged the dead body of the deceased and brought it beneath the tree of Kawa and kept an axe in order to demonstrate and tried to create a scene that deceased fell down from the tree. This witness has also stated that at the place of occurrence blood was lying but appellant after removing the blood stained soil threw it in the field of peas and thereafter brought some plants of gram at the place of occurrence and burnt them at the place where the blood was lying. This witness has further stated that appellant gave threat to her for not lodging any report and also brandished a Katta. On the next day her brother came in the village at 6 in the morning. According to para 3 of her statement she narrated the entire incident to her brother Ratiram and thereafter came to her parents' house along with him. In cross-examination she has admitted that her brothers Gayadeen and Ratiram came to the village on the next day of the incident, to whom she narrated the entire incident. She has also stated that police persons also came to the village on the next day of the incident, to them also she narrated the entire incident. But no such statement which was given to the police by this witness has been filed by the prosecution. She has also stated that police persons also came to the village on the next day of the incident, to them also she narrated the entire incident. But no such statement which was given to the police by this witness has been filed by the prosecution. Apart from this, in para 17 of her cross-examination she has specifically stated that the day when she came to her parents' village i.e. next date of the incident on that date only she submitted written report, but on going through written report Ex. P-15 we find that the same was submitted in the police station on 20.3.1997. Hence, according to us, the witness is concealing the reality. PW 13 Balwant Singh who is scribe of this written report has also stated that on 20.3.1997 the said report was submitted. Thus the statement of these two witnesses, on the point of the date of writing of the report is opposite and contradictory to each other and it would be hazardous and highly unsafe to place reliance on such contradictory evidence. In this view of the matter, we are of the view that the evidence of Sahodra is shaky and no reliance can be placed on her evidence. 11. Brothers of Sahodra, namely, Gayadeen and Ratiram to whom she narrated the entire incident on the very next day have not been examined by the prosecution. Similarly, mother of Sahodra has also not been examined to whom she narrated the incident. According to us, the prosecution should have taken pains to examine them in order to take out the grain from the chaff. Their evidence would have certainly thrown sufficient light in order to judge whether appellant is the real culprit. There is suggestion on behalf of appellant to Sahodra that as she wants to grab the land of the appellant, she with this ulterior object submitted a false report. But the said suggestion was denied by this witness. However, since her evidence is not found reliable, it would be highly unsafe to place reliance on the sole testimony of this witness without any independent corroboration, to convict the appellant. The other eye-witnesses cited by the prosecution have been declared hostile. 12. For the reasons stated hereinabove, we extend our benefit of doubt I to the appellant. Resultantly, this appeal succeeds and is hereby allowed. The judgment of learned trial Court is hereby set aside. The other eye-witnesses cited by the prosecution have been declared hostile. 12. For the reasons stated hereinabove, we extend our benefit of doubt I to the appellant. Resultantly, this appeal succeeds and is hereby allowed. The judgment of learned trial Court is hereby set aside. The appellant is acquitted from all the charges. He is in jail, he be set at liberty forthwith, if not required in any other case.